In an extraordinary move that undermines the legal foundation for
the conduct of intelligence activities, President Bush ordered the
National Security Agency to conduct electronic surveillance of U.S.
persons outside of the statutory framework that was established to
authorize such surveillance, the New York Times revealed last week.

Although the President insisted that his action was "consistent with
U.S. law and the Constitution," the surveillance operation was not
conducted in accordance with the Foreign Intelligence Surveillance
Act of 1978, the statute that permits domestic intelligence
surveillance with the approval of a specially designated federal
court.

"Domestic intelligence collection is governed by the Foreign
Intelligence Surveillance Act, known as FISA," explained Sen.
Dianne Feinstein (D-CA), a member of the Senate Intelligence and
Judiciary Committees. "FISA is the exclusive law in this area."

"We have changed aspects of that law at the request of the
administration in the USA PATRIOT Act to allow for a more
aggressive but still lawful defense against terror. So there have
been amendments," Sen. Feinstein noted.

But to conduct domestic intelligence surveillance outside of the
FISA framework "calls into question the integrity and credibility
of our Nation's commitment to the rule of law," she said December
16. See:

The FISA process is not unduly burdensome or time-consuming.
"Urgent requests that meet the criteria and requirements of FISA
are handled as emergency or expedited matters," said the Attorney
General in a written response to questions from the Senate
Judiciary Committee, transmitted October 20, 2005.

"The fact of the matter is, FISA can grant emergency approval for
wiretaps within hours and even minutes, if necessary," said Sen.
Feinstein.

In a 2000 statement describing oversight of NSA activities, then-NSA
Director Lt. Gen. Michael V. Hayden said "The American people must
be confident that the power they have entrusted to us is not being,
and will not be, abused."

NSA "operates within detailed, constitutionally-based, substantive,
and procedural limits under the watchful eyes of Congress, numerous
institutions within the Executive Branch, and -- through the FISA
-- the judiciary."

"The privacy framework is technology neutral and does not require
amendment to accommodate new communications technologies," he said.

"The regulatory and oversight structure, in place now for nearly a
quarter of a century, has ensured that the imperatives of national
security are balanced with democratic values," Gen. Hayden said then.
See:

Under mounting pressure, the Bush Administration has groped for some
legal justification for its departure from statutory requirements.

Attorney General Alberto Gonzales proposed today that the 2001
congressional resolution authorizing the use of "all necessary and
appropriate force" against terrorists encompassed the right to
conduct domestic wiretapping.

But that resolution plainly pertains to the use of military force,
not intelligence collection.

Nor do the President's inherent authorities as commander in chief
extend without limitation to warrantless surveillance of Americans.

"A state of war is not a blank check for the president when it
comes to the rights of the nation's citizens," wrote Justice Sandra
Day O'Connor in a ruling last year on the legal rights of
detainees.

On December 7, President Bush issued National Security Presidential
Directive 44 on "Mananagement of Interagency Efforts Concerning
Reconstruction and Stabilization."

"The purpose of this Directive is to promote the security of the
United States through improved coordination, planning, and
implementation for reconstruction and stabilization assistance for
foreign states and regions at risk of, in, or in transition from
conflict or civil strife," the Directive states.

The use of presidential directives as an instrument of executive
authority is discussed in "Presidential Directives: Background and
Overview" by Harold C. Relyea, Congressional Research Service,
updated January 7, 2005:

A descriptive inventory of more than one hundred automated
information systems and databases used by government agencies in
support of counter-drug law enforcement activities was compiled by
the General Accounting Office in 1991 at the request of Congress.

The surprisingly expansive 75 page account is mainly of historical
interest, though it may also be useful in focusing Freedom of
Information Act requests and other research activities.

"Because the agencies consider the information contained in this
report to be sensitive," the GAO wrote in 1991, "we have marked the
report For Official Use Only."

It is still not included in GAO's public database. But a copy was
obtained by Secrecy News.

Presidents have previously claimed authority over domestic
communications, observed intelligence historian David Kahn, but
they have done so with congressional sanction:

"On 16 July 1918 a congressional resolution gave the president the
power to assume control of wire communications during the war (40
Statutes at Large 904). A presidential proclamation of 22 July 1918
took that control and devolved the power on the postmaster general
(40 Statutes Part 2, 1807-8). A law of 29 October 1918 (40 Statutes
1017-18) prohibited anybody from divulging the contents of those
communications. The resolution was repealed in 41 Statutes 157."

In the 1990s, intrepid researcher Glenn Campbell probably did
more than any other individual to make "Area 51" the most famous
secret military base in the world. Now he has turned his peculiar
talents to the even more challenging proceedings of family court in
Las Vegas. See his web site www.familycourtchronicles.com and a
profile of his activities in the Las Vegas Sun, "An eccentric's
struggle for truth," December 18: